Opinion
June Term, 1820.
1. The refusal of an inferior court to allow pleadings to be amended, or to continue a cause, or any other exercise of a mere power of discretion — held, not to be an error for which the judgment will be reversed on appeal or writ of error.
2. Nor is it an error to refuse a new trial which is moved for on the ground that the verdict is against evidence. (See Note.)
NOTE. — With this opinion of HENDERSON, J., corresponds Insurance Co. v. Hodgson, 6 Cranch, 217, in which the opinion of the Court was expressed by LIVINGSTON, J., in these words: "The Court does not think that the refusal of an inferior court to receive an additional plea, or to amend one already filed, can ever be assigned for error. This depends so much on the discretion of the court below, which must be regulated more by the particular circumstances of each case than by any precise and known rule of law, and of which the Superior Court can never become fully possessed, that there would be more danger of injury in revising matters of this kind than what might result now and then from an arbitrary or improper exercise of this discretion. It may be very hard not to grant a new trial, or not to continue a cause, but in neither case can the party be relieved by a writ of error — that is, if the motion for a new trial be because the verdict is against evidence. Nor is the Court apprised that a refusal to amend was ever made the subject of complaint in this way." And, in Woods v. Young, 4 Cranch, 238, the Court asks. "Has the party, by law, a right to a continuance? Is it not merely a matter of favor and discretion?" And they decide that a refusal to continue cannot be assigned for error. See also Insurance Co. v. Young, 5 Cranch, 187.
The Reporter will be excused for these references by the contrariety of opinion and practice among the profession upon this question in different parts of the State. — REPORTER.
DEBT on bond. Plea, non est factum and issue. From DUPLIN. After the cause had been pending some time and stood for trial, the defendant moved the court, on affidavits, to amend by adding the pleas of infancy and the statute against gaming, which was refused and a verdict taken, and judgment rendered against him on the pleadings as they then stood. The defendant appealed to this Court, upon the ground that the court erred in not allowing the amendment.
Henry for the appellant.
Mordecai for the appellee.
I think this Court cannot look into the question arising upon the motion to amend, for two reasons: the first is, that it is a question of discretion, and in all cases of discretion as much is confided to the inferior court as to the Superior Court. The second reason is, that the very act of vesting a discretionary power proves that the subject-matter depends on such a variety of circumstances, where each shade may make a difference, (94) that it is impossible to prescribe any fixed rules or laws by which the subject can be regulated. And, although it be said that a sound discretion means a legal discretion, yet, when we ask what the legal discretion is, we are as much at a loss as we were before the definition to declare the rules or laws by which the discretion shall be regulated. To prescribe fixed rules for discretion is at once to destroy it.
This opinion is very much supported by the practice in England. I do not know a single case where any decision depending on discretionary power has been the subject of a writ of error, and I think that the power of this Court to correct errors in law extends not to those errors which may be committed in the exercise of a discretion, but only to those where the fixed and certain rules, emphatically called laws, are mistaken.
To entertain this question would compel us to take notice of questions on motions to continue, and all other collateral questions arising in the progress of a cause, a full view of which can never be taken from the abstract facts put down upon the record. Besides, the delay and the inconvenience of unraveling and undoing all that had been once done in the court below, after the decision of the point complained of, would overwhelm any good arising from the interference of this Court. We are not unapprised that the Court of Appeals of Virginia entertain jurisdiction even in cases of continuances. There may possibly be something in the constitution of their courts which warrants it, but there is nothing in ours.
Without looking into the motion for the amendment, we think that the judgment of the Superior Court must be affirmed.
Cited: Williams v. Averett, 10 N.C. 311; Turner v. Child, 12 N.C. 134; S. v. Raiford, 13 N.C. 215; McCurry v. McCurry, 82 N.C. 298; Edwards v. Phifer, 120 N.C. 406.
(95)